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BNY Mellon Contests Chesapeake’s Early Redemption of Notes

Bank and other investors ask court to reject Chesapeake’s bid for an emergency order.

Bank of New York Mellon Corp. asked a judge to reject Chesapeake Energy Corp.’s bid for an emergency order allowing it to redeem more than $1.3 billion in notes early without paying new interest, saving about $400 million.

Investors holding $250 million in debt echoed the bank’s request as they sought to intervene. A hearing is set for later today in the suit, in which Chesapeake seeks a ruling that it can still meet a March 15 deadline to redeem the 6.775 percent notes at par, and not the higher “make whole” price.

“Chesapeake, having missed the deadline to redeem the notes at par, now demands an advisory opinion from the court, seeking to guarantee the idiosyncratic treatment of a future redemption notice which has not yet been made,” BNY Mellon, the indenture trustee for the notes, said in a filing today in Manhattan federal court opposing the request.

The notes, issued in February 2012 and due March 2019, were pushed by traders to a record 105.9 cents on the dollar on the day the suit was filed, a signal traders may believe the Oklahoma City-based company would have to pay a premium to call the debt.

Chesapeake, the second biggest natural gas producer in the U.S., argued it has until March 15 to issue a formal notice that it will redeem the notes early, while Bank of New York Mellon said the early redemption would need to be completed by that date to avoid the make-whole provision that would include paying interest.

In its filing today, Bank of New York Mellon argued Chesapeake isn’t in danger of “irreparable harm” in the case, citing a standard for obtaining such an injunction, because the energy company can seek money damages if it wins and won’t suffer permanent damage. The bank also said Chesapeake can’t prove it has a likelihood of success -- another requirement.

Bank of New York Mellon initially supported Chesapeake’s plan when the energy company first discussed early redemption with the bank on Feb. 20, according to the complaint. Two days later, the bank changed its mind, Chesapeake said.

In a separate court filing today, several investors, calling themselves an “ad hoc noteholder group,” asked court permission to intervene in the litigation -- a status that would allow them to attend hearings and file papers in the case.

“If Chesapeake chooses to issue a notice of redemption, it must live with the consequences of the terms in the indenture, and the court should not create a right that does not exist,” the noteholders said in their joint filing.

The group, whose outstanding notes are worth a total of about $250 million, argues Chesapeake seeks to “rewrite” the redemption provisions of the indenture. The noteholders called the requested injunction “drastic” and again cited a lack of irreparable harm to Chesapeake.

“There is no business to save, no reputation to protect, no unique contractual right to enforce,” the noteholders said in the filing. “This case indisputably is about money and money only. And, as such, there is no irreparable harm.”

Michael Kehs, a spokesman for Chesapeake, declined to comment on Bank of New York Mellon’s filing.

Bank of New York Mellon “fails to distinguish the difference between a deadline for when notice must be given, and when the redemption date -- the date on which payment is actually made to noteholders -- occurs,” Chesapeake said in its complaint. “This is not a typical contractual dispute where one party’s misreading of an agreement can be remedied after the fact.”

Chesapeake’s 2019 securities yielded 5.61 percent, or 552 basis points more than comparable-maturity Treasuries, yesterday, according to Trace, the bond-price reporting system of the Financial Industry Regulatory Authority. The 6.775 percent coupon on those bonds is 50 basis points higher than the average weighted coupon on all the company’s outstanding debt, according to data compiled by Bloomberg.

The case is Chesapeake Energy Corp. v. The Bank of New York Mellon Trust Co., 13-cv-01582, U.S. District Court, Southern District of New York (Manhattan).

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